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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 24
June 16, 2007

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Law in-depth

An assessment of the doctrine of 'due process'

M. Jashim Ali Chowdhury

Article 31 of our Constitution envisages reasonable and non- arbitrary laws and procedure. It has two components:

1. Inalienable right to be treated in accordance with law.
2. No action detrimental to the life, liberty, body, reputation or property of any person.

Much of the significance of Article 31 lies in that it envisages the famous doctrine of Due Process which is said to be a concept having its birth in America.

The Fifth Amendment to the U.S. Constitution states that no person shall be deprived of life, liberty, or property, without due process of law. The Fourteenth Amendment further illuminates the concept by saying: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The central aim of due process doctrine is to assure fair procedure when the government imposes a burden on an individual. The doctrine seeks to prevent arbitrary government, avoid mistaken deprivations, allow persons to know about and respond to charges against them, and promote a sense of the legitimacy of official behaviour. The doctrine is understood in two senses: Procedural due process and Substantive due process.

Procedural due process is the idea that government must follow fair and generally accepted legal procedures in its actions against individuals.

Substantive due process refers to a requirement that laws and regulations be related to a legitimate government interest (e.g., crime prevention) and not contain provisions that result in the unfair or arbitrary treatment of an individual. There are some behaviours of individuals that, according to the court, are generally beyond the reach of government power, such as the free exercise of religion or participation in private organisations working on public problems and issues. The government may not regulate these actions, not even by the use of the fairest legal procedures, because to do so would violate the most fundamental rights of individuals in a constitutional government. If government officials want to regulate these kinds of usually protected actions, they must demonstrate that they cannot achieve a legitimate public purpose by any other means.

Evolution of substantive due process
The modern notion of substantive due process emerged in decisions of the U.S. Supreme Court during the late nineteenth century. In the 1897 case of Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832, the Supreme Court for the first time used the substantive due process framework to strike down a state statute. The Allgeyer case concerned a Louisiana law that made it illegal to enter into certain contracts with insurance firms in other states. The Court found that the law unfairly abridged a right to enter into lawful contracts guaranteed by the Due Process Clause of the Fourteenth Amendment.

For about forty years next continued what may be called freedom-of-contract version of substantive due process. This freedom meant that individuals had the right to purchase or sell labour or products without unreasonable interference by the government.

In one famous case from this era, Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L.Ed. 937 (1905), the court struck down a New York law (N.Y. Laws 1897, chap. 415, art. 8, § 110) prohibiting employers from allowing workers in bakeries to be on the job more than ten hours a day and sixty hours a week. The court found that the law was not a valid exercise of the state's police power. The court argued that it could find no connection between the number of hours worked and the quality of the baked goods, thus the law was arbitrary.

During the 1930s, the court used the doctrine of substantive due process to strike down federal legislation as well, particularly legislation associated with President Franklin D. Roosevelt's New Deal. After a 1937 court-packing scheme in which Roosevelt attempted to overcome court opposition to his programs by appointing additional justices, the court changed its position on substantive due process and began to uphold New Deal legislation. This time a majority on the court, including Chief Justice Charles E. Hughes and Justice Benjamin N. Cardozo, abandoned the freedom-of-contract version of substantive due process.

Even before the court abandoned the freedom of contract approach to substantive due process, it began to explore using the Due Process Clause of the Fourteenth Amendment to reevaluate state laws and actions affecting civil freedoms protected by the Bill of Rights. Since the 1833 case of Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, the Supreme Court had interpreted the Bill of Rights as applying only to the federal government.

Beginning in the 1920s, however, the court began to apply the Bill of Rights to the states through the incorporation of those rights into the Due Process Clause of the Fourteenth Amendment.

By the 1960s, the court had extended its interpretation of substantive due process to include rights and freedoms that are not specifically mentioned in the constitution but that, according to the court, extend or derive from existing rights. It found that the due process clause of the Fourteenth Amendment is not limited to those guarantees spelled out in the Bill of Rights, but instead contains protection against practices and policies that may fall short of fundamental fairness without violating a specific provision.

Sometimes a statute may be so vague that it violates due process. If a statute lacks the required definiteness or specificity, the U. S. Supreme Court will hold the statute "void for vagueness." In Giaccio v. Pensylvania it was held that a law fails to meet the requirement of doctrine of Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves the judge or juror free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.

In Roe v. Wade 410 U.S. 113 No. 70-18 a pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life. A licenced physician (Hallford), who had two state abortion prosecutions pending against him, was permitted to intervene. A childless married couple (the Does), the wife not being pregnant, separately attacked the laws, basing alleged injury on the future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health.

The court held that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly.

In Moore v. East Cleveland 431US 494 a zoning ordinance limited residence in a dwelling unit to the nuclear family within the meaning of the ordinance and Mrs. Moore was convicted for the offence of violating the ordinance. The ordinance was held to be violative of the due process guarantee as the court found the law to be an unreasonably intrusive Regulation of the Family.

Criticisms of substantive due process
The court's use of the incorporation doctrine and substantive due process has been controversial. Critics charge that substantive due process is a distortion of the original meaning of due process, which involved only adherence to formal and fair procedures by government officials in actions against individuals.

Further, critics say that substantive due process has been used by judges to interfere in matters that should be left to resolution by majority vote in Congress or state legislatures. Originalists call substantive due process a "judicial usurpation".

Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government.

Finally, critics claim that substantive due process and the incorporation doctrine have been used by the U.S. Supreme Court to wrongly suppress the authority and power of state governments.

However, virtually no one challenges the general value of due process of law as a guarantee of procedural consistency and fairness. In Shaughnessy v. United States (1953), Justice Robert Jackson stressed that controversy about substantive due process does not change the most fundamental and general agreement about procedural fairness, which “is what it [due process] most uncompromisingly requires.”

By now the Due Process has been one of the finest features of almost all the leading democracies of the world. Interestingly Article 31 of our Constitution 'is wider in its scope and operation than the due process clause of the American jurisdiction inasmuch as it covers the entire range of human activities and is attracted when a person is adversely affected by a state action irrespective of the question whether it affects his body, person, reputation or property. American due process clause is attracted only when detrimental action relates to life liberty and security of person.'

The writer is a Lecturer at the Department of Law and Justice, Metropolitan University, Sylhet.


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